S.H. Sheth, J.
1. This Second Appeal arises out of execution proceedings.
2. The facts of the case briefly stated are as under.
The respondent who is the original decree-holder-landlord obtained against the appellant who is the original judgment-debtor-defendant decree in Regular Civil Suit No. 60 of 1963 decided by the Court of the Civil Judge (Junior Division) at Dwarka. The suit was filed for recovering arrears of rent and the parties arrived at a compromise in that suit.
The compromise decree was, therefore, passed which provided for payment of arrears of rent by instalments specified therein. It also provided for the consequences of default in payment of decretal instalments. If the judgment-debtor failed to pay any one instalment the plaintiff would be entitled to recover the whole of the remaining amount in one lump sum and he would also be entitled to obtain vacant and actual possession of the suit premises shop No. 4 and godown No. 4. It further provided for the defendant continuing to pay compensation for the use and occupation of the suit premises at the rate specified in the said decree by the 10th of every month as and when it would become due. The decree further provided that if default was committed in paying the said amount of compensation for any two months together, then the decree-holder-plaintiff would be entitled to recover vacant possession of the suit premises from the defendant by executing the decree.
3. It appears that the judgment-debtor committed certain defaults. Therefore, the decree-holder filed in the Court of the Civil Judge (Junior Division) at Dwarka Regular Darkhast No. 14 of 1964 for recovering possession of the suit premises. The judgment-debtor raised objection to the excitability of the decree.
4. The learned Trial Judge considered the objections raised by the judgment-debtor and negatived them. He proceeded to execute the decree.
5. The judgment-debtor challenged that order passed by the learned Trial Judge in the Court of the District Judge at Jamnagar in Regular Civil Appeal No. 187 of 1964. For the reasons recorded by the learned District Judge in his judgment he concurred in the final order passed by the learned Trial Judge.
6. It is against that appellate order made in execution proceedings that the present Second Appeal has been filed by the judgment-debtor.
7. Mr. K. C. Shah, appearing for the decree-holder respondent, has raised a preliminary objection to the maintainability of this Second Appeal. In order to consider the question of maintainability of the Second Appeal it is necessary to state a few facts. The area in which the suit premises are situate was governed at the relevant time by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Bombay Rent Act'.) The plaintiff as the landlord of the suit premises filed the suit against the defendant who was his tenant. The suit was filed for recovering possession on the ground of arrears of rent. It was in that suit that the compromise decree was passed. The proceedings in the suit, therefore, were governed by the provisions of the Bombay Rent Act. Section 29(2) of the Bombay Rent Act bars Second Appeals in matters governed by the provisions of the Bombay Rent Act. It has been argued that this appeal is under Section 47 of the Code of Civil Procedure. In our opinion, that argument is misconceived. Section 47(1) of the Code of Civil Procedure provides as under.
'All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.'
Sub-sections (2) and (3) of Section 47 are not material for the purpose of the present case. What sub-section (1) of Section 47 provides is the scope and ambit of the question which may be agitated in execution proceedings. It does not deal with the right of appeal. The scope of execution proceedings, as laid down by sub-section (1) of Section 47, relates only to questions or matters relating to the execution, discharge or satisfaction of the decree. No other question which does not pertain to any of these three matters can be agitated in execution proceedings. On a bare perusal of sub-section (1) of Section 47, therefore, it is clear that the function that it performs is very much different from one providing for appeals.
8. Now the other provisions to be considered in this behalf are Section 100 and sub-section (2) of Section 2 of the Code of Civil, Procedure and sub-section (2) of Section 29 of the Bombay Rent Act. Section 100 of the Code of Civil Procedure provides for appeals from decrees passed in appeal by any Court subordinate to the High Court. The relevant portion of sub-section (1) of Section 100 is in the following terms.
'Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal, by any court subordinate to a High Court on any of the following grounds.............' There are two material ingredients which must be satisfied in order to attract the provisions of Section 100. The first ingredient is that the decree sought to be challenged under Section 100 must be a decree in appeal. The second ingredient is that there must not be any other express provision either in the body of the Civil Procedure Code or in any other law for the time being in force barring an appeal against an appellate decree. Clauses (a), (b) and (c) of Section 100 and sub-section (2) of Section 100 are not relevant for the purpose of this case. The first ingredient is that there must be decree in appeal which alone can be challenged under Section 100. 'Decree' has been defined by Section 2(2) of the Code of Civil Procedure in the following terms.
' 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144.........' The rest of the definition is not relevant for the purpose of this case. This definition of 'decree' given in sub-section (2) of Section 2 by a deeming fiction elevates to the status of a decree determination of any question under Section 47 of the Code of Civil Procedure. Therefore, bearing Section 47 in mind, all decisions in execution proceedings on the questions relating to execution, satisfaction and discharge of the decree amount to 'decrees' and, therefore, provisions of Section 100 are attracted. In execution proceedings, so far as the right of appeal is concerned, Section 47 is significant only in so far as it has been referred to in Section 2(2) so as to embrace the orders in execution within the terms of 'decree'. Since, by virtue of the definition of 'decree' given in S. 2(2) read with Section 47. Section 100 is attracted to orders in execution proceedings, second appeals lie in execution proceedings if there is no other impediment arising out of Section 100.
9. In the instant case, if there is no other impediment, second appeal shall certainly be competent. But the expression save where otherwise expressly provided .......... ......... by any other law for the time being in force, used in section 100, in our opinion, creates such an impediment. An express provision to the contrary has been made in Section 29(2) of the Bombay Rent Act. It expressly prohibits second appeals. The material part of sub-section (2) of Section 29 runs as under.
'No further appeal shall lie against any decision in appeal under sub-section (1).......Now turning to sub-section (1) of Section 29 we find in clause (b) the following provisions.
'(1) Notwithstanding anything contained in any law, an appeal shall lie. ...... ..... ...... ... ...
(b) elsewhere, from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887, or by the Court of the Civil Judge deemed to be the Court of Small Causes under clause (c) of sub-section (2) of Section 2 or by a Civil Judge exercising such jurisdiction, to the District Court.................' The decision contemplated by sub-section (2) of Section 29 is the appellate decree or order which may be passed against original decrees and orders made under Section 28, Clause (b) of sub-section (1) of Section 29 contemplates original decrees and orders made under Section 28 of the Bombay Rent Act. Section 28 refers to 'any suit or proceeding' between a land-lord and a tenant relating to the recovery of rent or possession of any premises. This expression used in sub-section (1) of Section 28 is wide enough to embrace execution proceedings within its ambit. Explanation to Section 28 gives an indication of the ambit of the expression 'proceeding' used in sub-section (1) of Section 28 which is in the following terms. 'In this section 'proceeding' does not include an execution proceeding arising out of a decree passed before the coming into operation of this Act.'
By necessary implication, therefore, execution proceedings arising out of decrees passed after the coming into operation of the Bombay Rent Act are included in the expression 'proceeding' used in sub-section (1) of Section 28. Therefore, original execution proceedings for recovery of possession between a landlord and tenant are governed by Section 28(1). If it is so, appeal against any decision therein relating to execution, discharge and satisfaction is competent under Section 29(1) but a further appeal against an appellate decision in such proceedings is barred by sub-section (2) of Section 29. We may, however, state that 'decree' used in Section 29(1) bears the same definition as in Section 2(2) of the Code of Civil Procedure. No other or special definition of 'decree' has been given in the Bombay Rent Act. Therefore, though second appeals in execution proceedings lie by virtue of Section 100 read with Section 2(2) and Section 47 of the Code of Civil Procedure (and not by virtue of Section 47), they are barred by Section 29(2) of the Bombay Rent Act in the proceedings instituted to execute decrees passed in suits governed by Section 28 of the Bombay Rent Act. Therefore, in our opinion, second appeal in the present case is incompetent and cannot be entertained. Our attention has been invited by Mr. Barot to the unreported decision of Mr. Justice Y.D. Desai in Second Appeal No. 688 of 1963 decided on 10th and 12-12-1969 (Guj) where the learned Judge has taken a contrary view only upon the consideration of Section 47 of the Code of Civil Procedure. The learned Judge has not considered the effect of Section 29(2) of the Bombay Rent Act and he has also not considered that Section 47 by itself does not deal with the question of appeals. That decision, therefore, in our opinion, does not lay down good law and must be overruled.
10. In view of this position Mr. D.L. Barot, appearing for the appellant, has prayed for leave to convert this Second Appeal into a Civil Revision Application, we have granted the leave. We direct that this Second Appeal shall be converted into Civil Revision Application.
11. Now we proceed to decide this matter on the basis that it is a Civil Revision Application. Turning to the merits of the case we find that the learned District Judge has recorded certain findings in his appellate order relying upon the ratio of the decision of Mr. Justice Raju in the case of Tribhuvandas Lallubhai Shah v. Chhitalal Chunilal Shah reported in : AIR1963Guj256 . The learned District Judge has inter alia recorded a finding that it is not open to any Court, after the decree is passed, to ascertain whether the decree as passed contains a penal clause. He has further observed that, once a decree is passed, it must be executed as it is in view of the provisions of Part II of the Civil Procedure Code unless the decree is modified or reversed in appeal by the superior Court. He has further observed that it is not open to the judgment-debtor to contend that the consent decree in question creates a fresh lease in his favour. These observations made by the learned District Judge flow from the decision of Mr. Justice Raju in the case of Tribhuvandas Lallubhai Shah : AIR1963Guj256 (supra). It was not open to the learned District Judge to take a different view from the view expressed by Mr. Justice Raju in the aforesaid case. The learned Advocate for the appellant before the District Court, therefore also could not, in face of the said decision, advance any arguments on the question. The second finding which the learned District Judge has recorded is that there was no evidence to show that the judgment-debtor had tendered the amount of the second instalment and that the judgment-creditor had refused to accept it. It is in that view of the matter, having been principally influenced by the ratio of the decision given by Mr. Justice Raju in the case of Tribhuvandas Lallubhai Shah : AIR1963Guj256 (supra) that the learned District Judge dismissed the appeal without entering into the merits of the case.
This decision of the learned District Judge and the decision of Mr. Justice Raju in the case of Tribhovandas Lallubhai Shah : AIR1963Guj256 (supra) have been challenged by Mr. D.L. Barot before us. On the other hand, Mr. K.C. Shah, appearing for the judgment-creditor, has contended that whether a decree creates a fresh lease or not cannot be inquired into in execution proceedings.
12. Before we deal with the submissions made by Mr. K.C. Shah and proceed to examine the Civil contentions, we would like to reproduce the relevant portions of the decree under execution. They are as under. 'It is ordered that according to consent terms Ex. 19 the amount of compensation for the portion (sic) and use of the portion in possession of the defendant in suit upon the date 31-12-63 comes to Rupees 792/- and on deducting the amount of half of the Court fee of the plaint which the plaintiff is going to get refunded the costs of the suit comes to Rs. 148 which made in all Rs. 940/- which the defendant do pay to the plaintiff by the following instalments Rs. 500/- five hundred to be paid on the date 25-1-64 and the rest of the amount of Rs. 440/- on the date 25-4-64. The instalment is to be paid on the fixed date in time.'
Pausing here for a moment, if we look at the decree we find it to be purely a money decree. Then follows the default clause in the decree under execution which is in the following terms.
'If there be default in paying any one instalment, then in that event the plaintiff is entitled to recover the whole of the remaining amount in one lump sum. And the plaintiff is entitled to obtain vacant and actual possession of shop No. 4 and godown No. 4 being the premises in suit which are in my (the defendant) possession. And in that even I, the defendant agree to hand over the actual vacant possession of the same.'
Then follows the third part of the decree which provides for payment of compensation by the judgment-debtor to the judgment-creditor with consequences of any default which he may make in payment thereof. It is in the following terms.
'I, the defendant, am to continue to pay the amount of compensation for use of the shop bearing No. 4 and godown No. 4 in suit which are in my possession at Rupees 33/- per month to the plaintiff by the date the 10th of the next month as it becomes due every month. If default is made in paying the amount of compensation for two months together then in that event the plaintiff is entitled to take vacant and actual possession of the shop No. 4 and godown No. 4 which are in my possession by taking execution proceedings. And in that case I, the defendant, am to hand over the actual vacant possession of the shop No.4 and godown No. 4 which are in my possession.'
13. The questions which naturally arise from the decree of this type are as follows. (1) whether the decree contains a penal clause (2) whether the judgment-debtor is entitled to relief against forfeiture (3) whether the decree embodies an independent agreement as to the delivery of possession so as to secure payment of arrears of rent and compensation contemplated by the agreement or whether it is a decree for possession out-right in execution of which possession of the suit premises can be recovered. These questions which arise have not been decided by the learned District Judge on account of the decision in the case of Tribhuvandas Lallubhai Shah : AIR1963Guj256 (supra).
14. In support of his submissions Mr. K.C. Shah has invited our attention to a few decisions. The first one of them is in the case of Ahmedabad Municipal Corporation v. Joitaram Ganesh reported in 10 Guj LR 43. A Division Bench of this High Court consisting of Mr. Justice J.B. Mehta and Mr. Justice B.G. Thakire (as he then was) was considering in that case the question relating to compromise decree. Mr. Shah has placed particular reliance on the observations made by the learned Judges in Paragraph 6 of the report. The Division Bench firstly considered the distinction between nullity and invalidity and recorded the finding that whereas nullity of a decree can be pleaded in execution proceedings, its invalidity cannot be pleaded. While defining the base of nullity and invalidity, after having reviewed a number of decisions on the subject, it held that whereas inherent lack of jurisdiction would give risk to nullity, irregular or erroneous exercise of jurisdiction which a Court has would give rise to invalidity. In the instant case, this question does not arise. It was then contended before the Division Bench that the question whether a decree creates a fresh lease or not cannot be agitated in execution proceedings. The Division Bench in fact construed the decree (vide Paragraph 6 of the report) and recorded the finding 'that it never created any lease whatsoever' and then referred to the decision of Mr. Justice Datar in the case of Bai Manuben Chimanrao v. Bhimabhai Nagarji reported in : AIR1958Bom471 in order to derive support for their decision. Mr. Justice Datar in Bai Manuben's case : AIR1958Bom471 (Supra) has expressed an opinion that the question whether the compromise decree creates a fresh lease cannot be agitated in execution proceedings 'for the simple reason that once the Trial Court passed a decree under Order 23, Rule 3, if it committed any error in incorporating this direction, in so far as it did not relate to the suit, it only committed a jurisdictional error'. The Division Bench has then proceeded to observe as follows: -
'The Court having complete jurisdiction over the suit and on matters relating to suit, the consent decree could be made. The Court, therefore, did not lack inherent jurisdiction and the decree in such a case would not be a nullity. Mr. Shah has also not rightly passed this ground before us and even the ultimate conclusion of our learned brother Raju J. is not founded on this ground. The Corporation is only affected by the conclusion that the decree created a lease and we hold that this conclusion was wholly unjustified on the plain reading of the present consent decree.'
We are unable to find in this decision any support for the proposition which Mr. Shah canvasses before us. Firstly, the Division Bench construed the lease and recorded the finding on merits that it did not create any lease whatsoever. Having taken that view on merits, it was unnecessary for them to make any observations on the point whether such a question could be agitated in execution proceedings. Secondly, Mr. Justice Datar in Bai Manuben's case : AIR1958Bom471 (Supra) made certain observations on the question but, as we shall be presently showing, did not lay down any principle. He left the question open for future consideration. No reliance could have, therefore, been placed upon those mere observations which did not lay down any principle. Thirdly, Mr. Justice Datar's observations were contrary to two Full Bench decisions of the Bombay High Court to which we are referring in course of this judgment. Lastly, the excerpt reproduced above from the aforesaid decision of our Division Bench clearly shows that the question was not pressed before the learned Judges for their decision and also did not otherwise arise for their decision because the decision of Mr. Justice Raju against which they were hearing that appeal was not founded upon that proposition. We are, therefore, of the opinion that the observations of the Division Bench, relied upon by Mr. Shah are mere passing and casual observations and with great respect to the learned Judges who constituted the Division Bench, they do not, in our opinion, lay down any rule or principle of law so far as the proposition canvassed by Mr. Shah before us, is concerned. The question which is canvassed before us is well settled by the two decisions of the Full Bench of the Bombay High Court to which we are presently referring. In the case reported in : AIR1958Bom471 Mr. Justice Datar was dealing with a compromise decree. A Similar question was raised before him. Instead of summarising what Mr. Justice Datar has laid down in that decision it would be more appropriate to reproduce his views in his own language.
'Before I deal with this contention of Mr. Shah on merits, it seems to me there is an initial difficulty in the way of the judgment-debtor's raising such contention in execution proceedings. I have already stated that the suit out of which the present Darkhast proceedings have arisen had been instituted by plaintiffs Nos. 1 and 2 as owners and by plaintiff No. 3 as their tenant for possession of the suit premises on the ground that the defendants were trespassers and had wrongfully occupied the suit premises. It is to be noted that it was never the case of the plaintiffs that the defendants were their tenants at any time before the institution of the suit and that the suit had been instituted after the termination of their tenancy. When there was a compromise in such a suit, that compromise was recorded by the Court, which under the provisions of Order XXIII, Rule 3, of the Civil Procedure Code passed a decree in accordance therewith so far as it related to the suit. The subject matter of the suit in the present case was, as I have already stated a claim for possession of the suit property from the defendants on the ground that they were trespassers. The Court could, therefore, pass an operative decree, though in accordance with the compromise that was subsequently arrived at, but only in so far as that compromise related to the subject-matter or the claim in the suit. If the executing Court finds that there is a valid operative decree regard being had to the subject matter or claim in the suit, it must execute that decree and is not concerned to find whether the terms of the compromise are capable of being construed as giving rise to a new relationship of landlord and tenant between the parties. Even assuming that the terms of the compromise are capable of such a construction, no operative decree in that event could have been passed in accordance with such a compromise, as the creation of a new lease was a matter entirely extraneous to the suit. It is undisputed that the creation of a new lease such as is now contended for by the judgment-debtors was not a matter which related to the suit. In fact, it is urged by them that the terms of the compromise for the first time gave rise to a new tenancy in their favour. If, therefore, there has been an operative decree passed as in the present case, it must necessarily and exclusively relate to the subject-matter or claim in the suit. When the Court is called upon to record a compromise and pass a decree in terms thereof, the Court can pass a decree in terms of the compromise only in so far as those terms relate to the suit and not in relation to those terms which are extraneous to the suit. The function of the executing Court would then be to execute such a decree, and I do not think that it would be open to the judgment-debtors to contend in the execution proceedings that the terms of the compromise upon which the decree was based created a new lease in their favour. If the terms of the compromise evidenced only a transaction of lease in favour of the defendants, no decree could have been passed in accordance with such terms as such terms obviously did not relate to the suit. Besides it may be noted, when the Court applied its mind and passed a decree in terms of the compromise, it must also mean that the Court impliedly negatived the plea that is now raised in the execution proceedings, namely, that the terms of the compromise created a new lease; for, otherwise if the Court had come to the conclusion or if the defendants had raised the contention that the terms of the compromise created a new lease, it would never have proceeded to pass a decree as it did in the present case. The Court would have stated in that event that the compromise terms had given rise to a case of new lease, and as the case of a new lease was not a matter relating to the suit, no operative decree embodying such terms could be passed under the provisions of O. XXIII, Rule 3 of the Civil Procedure Code. I should, therefore, think that it is not open to the judgment-debtors now to agitate the point which must be deemed to have been considered and overruled by the Court when it passed the decree in accordance with the compromise. Mr. Shah has however, relied upon the decisions reported in Sumatibai Kirtikar v. Anant Balkrishna, Gurupadappa Shivlingappa v. Akbar and Narayan Ramchandra v. Gangadhar, in which some consent decrees were construed in execution proceedings to operate as leases in favour of the judgment-debtors. He has also drawn my attention to the case of Ramjibhai Virpal v. Gordhandas, in which again some consent decrees were construed in execution proceedings and were held not to create leases. However, the point which I am now considering does not seem to have been raised in any of those cases. Even so, I must respectfully state that I am bound by those decisions. If, however, I had rested my judgment on the view which I have ventured to express on the point I have dealt with so far, I would have referred this appeal to a Division Bench, but as I agree with the view which has been taken by the lower appellate Court on the construction of the consent decree. I do not think it necessary to do so in the present case.' (emphasis ours)
It is clear from these observations made by Mr. Justice Datar that he did not decide the case on that point but decided it on merits. By not referring the matter to a larger Bench, He in terms left the question open. In that context we feel that the reference made by the Division Bench of this High Court in (1969) 10 Guj LR 431 to that decision is only a passing reference because there is no ratio decided in it which can be discovered from : AIR1958Bom471 .
15. In the case of Waman Vishwanath Bapat v. Yeshwant Tukaram reported in 50 Bom LR 688 = (AIR 1949 Bom 97 FB) a Full Bench of the Bombay High Court was considering a similar question. The principle which has been laid down by the Full Bench after reviewing a number of decisions on the subject is that where a decree, passed either by consent or in invitum, permits payment of the decretal amount in instalments and provides that on failure in payment of one or more instalments the whole amount of the decree would become payable at once, Courts are bound, in the event of such failure, to execute the decree in accordance with its terms, and are not at liberty to relieve against the consequences of failure on equitable considerations except against penalties or against forfeitures. In each case, the Court has to determine whether a certain obligation undertaken by a judgment-debtor is in the nature of a penalty or whether it is the result of a concession conferred upon him by the decree-holder. A Court of equity can grant relief against a condition which is in the nature of a penalty but if the decree-holder has conferred concession upon the judgment-debtor in case the latter fulfils the obligation undertaken by him within a specified time and if the judgment-debtor does not duly fulfil his obligation, he loses the concession and the Court has no jurisdiction to grant any relief to him in such a case.
16. In the case of Shirekulitimpa Hegda v. Mahablya reported in (1886) ILR 10 Bom 435 the principle which has been laid down is that the doctrine of penalties is not applicable to consent decrees and that those who, with their eyes open, have made alternative engagements and invited alternative orders of the Court must, if they fail to perform the one, perform the other, however greatly severe its terms may be. This decision was overruled in the Full Bench case of Krishna Bai v. Hari Govind Kulkarni reported in (1884) 8 Bom LR 813. In that case, it has been laid down that the Court can grant relief against forfeiture if, under the consent decree, the status of landlord and tenant between the parties has arisen from contract or custom.
17. These two decisions of the Full Bench of the High Court of Bombay came up for consideration before a Division Bench of that Court consisting of Mr. Justice Gajendragadkar and Mr. Justice Dixit in the case of Gajanan Govind v. Pandurang Keshav reported in : AIR1951Bom290 . It was contended in that case that those who Full Bench decisions in Waman Vishwanath Bapat's case, 50 Bom LR 688 = (AIR 1949 Bom 97 FB) (Supra) and Krishna Bai's case, (1884) 8 Bom LR 813 (supra) had laid down inconsistent principles on the same subject. Having considered both those decisions, the Division Bench held that in cases where the relationship of landlord and tenant was created or continued between the parties by a compromise decree, the judgment-debtor (tenant) would be entitled to relief against forfeiture resulting from his failure to pay the rent at the stipulated time. While laying down this proposition, it followed the Full Bench decision in Krishna Bai's case, (1884) 8 Bom LR 813 (supra) because on the facts of that case, relationship of landlord and tenant had been created by contract incorporated in the compromise decree. While defining the area to which the Full Bench decision in Waman Vishwanath's case, 50 Bom LR 688 = (AIR 1949 Bom 97) (FB), applies the Division Bench has observed as under.
'Shortly stated the view accepted by the Full Bench was that if it appears that the decree in question directs a certain sum of money to be paid by a particular date and adds a condition that if the said money is not paid on the said date a larger sum shall be paid, that condition is in the nature of a penalty against which a Court of equity can grant relief and award to the party seeking payment only such damages as he may have suffered by the nonperformance of the term as to the payment of the money. On the other hand if the decree makes a particular sum payable on a certain date and it follows the said direction by condition allowing to the debtor a concession, as for example, the liberty to pay the lesser sum or to pay the said sum by instalments, then the party who seeks to take advantage of that concession must carry out strictly the conditions on which the concession was granted. If the terms on which the concession was thus given are not carried out, there is no power in the Court to relieve the defaulting party from the obligation of so doing. The terms of the mortgage decree with which the Full Bench was concerned in Waman's Case were construed as amounting to a concession with the result that the Full Bench held that the judgment-debtor was not entitled to any relief as claimed by him.'
Proceeding further, a Division Bench has observed as under:
'It would thus be clear that the two Full Bench decisions do not cover the same or similar ground and were in fact dealing with entirely different situations. The earlier Full Bench was dealing with a compromise decree creating the relationship of landlord and tenant and it was held that the equitable jurisdiction to give relief to the tenant against the landlord's claim for forfeiture and re-entry can be exercised by Courts even though the said relationship of landlord and tenant is the result of the terms of a compromise decree. In a sense, therefore, this decision recognises an exception to the rule that consent decrees can be varied only by consent. On the other hand, the subsequent Full Bench decision in Waman's case was not concerned with compromise decrees of this kind. In this latter Full Bench case the question was as to the powers of the executing Court to grant relief to the judgment-debtors where consent decrees direct such judgment-debtors to pay certain amounts on specified dates or within a specified period, and in dealing with this question the Full Bench held that there is jurisdiction to grant such relief if on a construction of the decree in question it appears that the clause sought to be enforced amounts to a penalty. This again can well be regarded as another exception to the rule that consent decrees can be varied only be consent. If it is borne in mind that the question of granting relief which the two Full Bench decisions deal with arose under dissimilar circumstances and involved the consideration of different principles, it would be difficult to hold that there is any conflict between them. On the other hand, there is one feature which is common to both the decisions and that consists in the fact that both the decisions do not accept unreservedly or without exception the broad principle that consent decrees can be varied only by consent. We are, therefore, unable to accept the argument of the appellant that there is any conflict between the two Full Bench decisions at all. We think that whenever Courts are dealing with the question of granting relief to judgment-debtors, they must decide in which class of cases the decree in question falls. If the decree falls in the class of cases which was dealt with by the judgment in Krishna Bai's case, (1884) 8 Bom LR 813, the principle therein laid down must be applied. If, on the other hand, the decree falls in the other class of cases which was the subject matter of the decision in Waman's case, 50 Bom LR 688 = (AIR 1949 Bom 97 FB) it is the principle laid down in that case that must be applied.'
18. In each case, therefore, on the facts and circumstances of the case, it is for the executing Court to decide whether the case with which it is dealing attracts the ratio laid down in Krishnabai's case (supra) or in Wawan Vishwanath's case, 50 Bom LR 688 = (AIR 1949 Bom 97 FB) (supra). In the case reported in : AIR1963Guj256 , Mr. Justice Raju has followed the decision reported in (1886) ILR 10 Bom 435 which has been overruled in Krishnabai's case (supra). In our opinion, therefore, the decision of Mr. Justice Raju reported in : AIR1963Guj256 does not lay down good law because it follows an overruled decision and is contrary to the decision of the Full Bench in (1884) 8 Bom LR 813 (supra) we, therefore, overrule the decision of Mr. Justice Raju in the case reported in : AIR1963Guj256 .
19. So far as the learned District Judge is concerned, he had no alternative but to follow the aforesaid decision of Mr. Justice Raju. He has, therefore, not considered on merits the questions and issues which arise in this case. We must, therefore, set aside his order and remand the case to him for decision of the appeal on merits. We may, however, observe that while hearing the appeal after remand the learned District Judge will decide whether the case falls within the ratio laid down in Krishnabai's case, (1884) 8 Bom LR 813 (supra) or whether it falls within the ratio laid down in Waman Vishwanth's case, 50 Bom LR 688 = (AIR 1949 Bom 97 FB) (supra). He shall also bear in mind the decision of the High Court of Bombay in the case reported in : AIR1951Bom290 . In light of the aforesaid decisions and in light of the observations which we have made in this judgment, the learned District Judge shall decide on merits the questions which arise in this case.
20. The result, therefore, is that we allow the Civil Revision Application, set aside the order passed by the learned District Judge and remand the appeal to him for decision on merits. In the circumstances of this case there shall be no order as to costs.
21. Appeal remanded.